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The Mechanics of Claims and Permissible Killing in War
The Mechanics of Claims and Permissible Killing in War
Alec D. W A len
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2019
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Names: Walen, Alec, author.
Title: The Mechanics of Claims and Permissible Killing in War / by Alec D. Walen.
Description: New York, NY : Oxford University Press, 2019. |
Includes bibliographical references and index.
Identifiers: LCCN 2018035701 | ISBN 9780190872045 (hc : alk. paper)
Subjects: LCSH: Self-defense (Law)—Philosophy. | Self-defense (International law)—Philosophy.
Classification: LCC K5087. S4 W35 2019 | DDC 172/.42—dc23
LC record available at https://lccn.loc.gov/2018035701
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
To my mother, for her inspiring love of art and craft, and to my father, for his joie de vivre.
Preface xiii
1 Introduction 1
1 A Brief History of Recent Work on the Right of Self-Defense 2
2 My Position on the Right to Defend Against Threats 8
3 The Thesis in Practice 13
4 The Structure of the Argument 19
2 Basic Premises and Method 21
1 Reflective Equilibrium and the Relative Balance of Theory and Case Intuitions 21
2 Knowledge and Justification 23
2.1 The Use of Cases with Unrealistic Assumptions of Knowledge 23
2.2 Two Audiences and Two Kinds of Justification 23
2.3 The Case for a Qualified Fact-Relative Framework 26
3 Reductive Individualism 29
3.1 A Defense of Reductive Individualism 29
3.2 Warfare-Based Objections to Reductive Individualism and Replies 34
4 The Distinctive Causal Structure of Eliminative Killing 37
3 A Theory of Rights 43
1 The Purpose and Basic Structure of Rights 43
1.1 The Basic Function of Rights 44
1.2 The Three Principles That Ground the Space of Rights 47
1.2.1 The Autonomy Principle 48
1.2.2 The Equality Principle 49
1.2.3 The Welfare Principle 50
1.3 The Further Relevance of the Fundamental Principles 55
1.3.1 Rights as Grounding only a Subset of Possible Wrongs 55
1.3.2 The Autonomy Principle and the Topology of Rights 58
1.3.3 The Autonomy Principle and Owned Luck 60
2 Formalizing the Mechanics of Claims 65
2.1 Balancing Agent-Claims and Basic Patient-Claims 65
2.1.1 Overview of Balancing Claims, Organized in Terms of Partiality and Impartiality 66
2.1.2 Agents’ Negative Agent-Claims and Positive Patient-Claims 68
2.1.3 Some Scope for Positive Agent-Claims 71
2.1.4 The Argument Against Agent-Centered Prerogatives 73
2.2 Including Special Patient-Claims 77
3 Points of Contrast with the Infringement Model 79
4 The Mechanics of Claims and the Restricting Claims Principle 82
4.1 Introduction to the Restricting Claims Principle 83
4.2 The Property Baseline for the Restricting Claims Principle 87
4.3 Objections and Replies 90
4.4 Refining the Restricting Claims Principle with Empowering Claims 93
4.5 Two Final Clarifications Regarding the Restricting Claims Principle 97
4 Putting the Mechanics of Claims in Perspective 100
1 A Fresh Approach to Compensation 100
1.1 The Infringement Model’s Non-Unique Ability to Account for Compensation 101
1.2 Why the Mechanics of Claims Is Better on Compensation 103
2 Other Problems for the Infringement Model 108
2.1 Intrinsic Oddness of the Infringement Model 108
2.2 A Substantive Objection Regarding an Inappropriate Normative Gulf 111
2.3 Occam’s Razor and the Rights–Consequentialism Hybrid 113
2.4 Other Forms of Explanatory Power in the Mechanics of Claims 114
3 Threshold Deontology 115
3.1 A Positive Account of Threshold Deontology 115
3.2 Overcoming Problems with Threshold Deontology Using This Account 119
4 Final Comment on the Infringement Model 123
5 Avoiding a Misplaced Emphasis on Intentions 124
1 Introduction to Lazar’s Argument 125
2 The Limited Significance of Mixed Motives 125
3 Objection: Respect as a Subjective State 130
4 Application of the Preceding Argument to Just War Theory 134
4.1 Application to Lazar’s Argument 134
4.2 Lessons for Just War Theory About the Relevance of Intentions 136
6 Innocent Threats Versus Innocent Bystanders 137
1 Introduction 137
2 Innocent Victims and Innocent Bystanders 138
3 Innocent Threats and Innocent Victims 143
3.1 Stating the Problem 143
3.2 The Hybrid Argument: Its Insights and Its Failures 144
3.2.1 Insights 145
3.2.2 Failures 146
3.3 The Dual Significance of Being a Threat 149
3.4 A Final Review of the Hybrid Argument and the Infringement Model 150
4 Objections and Replies 151
4.1 The Nature of the Claims of Innocent Threats 151
4.2 A Temporal Objection 152
7 From Innocent Threats to Noncombatants Innocently Aiding Unjust Combatants 154
1 Overview of the Terms and the Argument 154
2 Non-Culpable Aggressors 155
3 Direct Innocent Threateners 157
4 Indirectly Threatening Harm 159
4.1 An Initial Argument That Indirectness Does Not Matter 160
4.2 Objection and Reply 161
4.3 A Way That Indirectness May Matter 164
5 Threatening Only in Numbers 165
6 Conclusion 168
8 Negative Agent-Claims and the Agent–Patient Inference 171
1 From Ducking to Actively Causing Harm 172
1.1 Allowing Harm by Ducking 172
1.2 Causing Harm That Is Like Ducking 177
2 From Agent-Rights to Patient-Rights 178
2.1 The Problem with Moving from Agent-Rights to Patient-Rights 178
2.2 Responsiveness 179
2.3 Justified Competition 181
2.4 The Bear and the Plank 184
3 Justified Acts and the Agent–Patient Inference 187
3.1 Good Agents and the Agent–Patient Inference 187
3.2 Culpable Agents and the Agent–Patient Inference 188
3.3 Third Parties and the Agent–Patient Inference 189
4 Application to Just War Theory 191
9 Intervening Agency and the Right of Non-Sacrifice 195
1 Introduction to the Puzzle 195
2 Two Unsuccessful Approaches to the Puzzle 197
2.1 Misplaced Use of Counterfactual Baselines 197
2.2 A Misplaced Appeal to the Importance of Rights Violations 200
3 Intervening Agency and Causal Roles 203
4 Application of the Claim of Non-Sacrifice 209
10 Conclusions 212
1 Conclusions About Eliminative Killing 212
2 Conclusions About Rights Theory 216
Table of Cases (with page of first use) 219
Glossary of Terms 221
Bibliography 225
Index 233
The overarching aim of this book is to articulate a new theory of rights—new except for its precursors in my own prior work. This is a theory that aims to explain why rights are a central and noneliminable part of morality. It presents an account of rights that is fundamentally different from the dominant view, according to which rights can be overridden by a range of competing moral considerations, though always leaving some residue behind. It is also different from the standard alternative account, according to which rights are mere conclusory labels identifying what is or is not permissible after the real moral reasoning has been done. According the view developed here, rights are the conclusions of a distinctive sort of rights-based reasoning that involves balancing pro tanto rights, or claims, against each other. The nature of the competing claims and the way they compete against each other defines a “space of rights,” a normative space that has its own distinctive normative structure.
The original ambition of this book was not to articulate a new theory of rights; it was a more modest ambition: to provide a better account of the right to defend against threats than currently exists. By “threats,” I meant persons or things that are likely to cause harm unless action is taken; I did not mean verbal statements intending to coerce. I took it that there’s no deep problem explaining why it is permissible for an agent to defend herself or others against culpable aggressors:1 they have forfeited their right
1 To avoid using “they” all the time, or the awkward “he or she,” or treating the generic person as either male or female, I have adopted a convention to treat agents as women and those who are affected by an agent’s acts as men—though sometimes those roles swap around and I have to simply pick a gender.
not to be attacked. There are interesting details to be worked out, such as when innocent victims must suffer a small amount of harm because the only way to avoid that is to cause much more harm to a culpable aggressor.2 But I did not want to focus on such details. Rather, I wanted to focus on three more basic questions: First, what may be done to those who non-culpably threaten to do what they have no right to do? Second, what may be done to people who have a right to threaten others? Third, what difference does it make if the threat they pose is indirect, that is, if it is mediated by the directly threatening acts of others?
I was drawn to engage these questions because, when I started to think about just war theory, I realized that the way I framed certain basic distinctions in the space of rights was inadequate. Bit by bit, my attempts to expand what I had done before to handle the issues that were arising when thinking about defending against threats took me to new, interesting theoretical territory. And at each step along the way, it seemed as if the ideas were revealing their own inner logic. Thus, focusing on questions about the right to defend against threats set me on the road to formulating a more satisfying general theory of rights.
I shifted my focus to a theory of rights more generally because, as I wrestled with how to make sense of the right to defend against threats, I came to realize that I had a fundamental disagreement with almost all the other just war theorists. They were almost all working on trying to articulate conditions under which a person who poses a threat to another is liable to be killed. That is, they were almost all working to articulate when and why being a threat could cause the threatening person to forfeit his right not to be killed. But in my view, the fundamental justifiability of killing threats does not depend on them forfeiting a right not to be killed. Forfeiture remains, I believe, relevant. But even if threats have not forfeited their right not to be killed, the very fact that they pose a threat without having a right to do so undermines their right not to be killed. Thus, I found myself working to articulate why one can get most of what one needs to understand the justifiability of defensive killing without worrying about liability to be harmed.3
2 See Christopher Wellman, 2012, pp. 375–376, for a list of seven distinct problems for any theory of forfeiture. See also Kimberly Kessler Ferzan, 2016, for a thorough discussion of these in the context of self-defense.
3 The one person I have read whose work does not focus on forfeiture is Victor Tadros. He still uses the concept of liability, but he cuts it free from forfeiture. See Tadros, 2016a. In doing so, he rightly points out that in the law and common parlance liability is not connected with forfeiture. Consider, for example, liability to pay taxes. Ibid., p. 113.
The deeper issue this revealed concerns the basic model of rights one uses. Almost everyone in the field uses what I call the infringement model. 4 According to this model, the rights people have do not settle what may be done to them. Even if they have in no way alienated their rights, if the cost of respecting a right is great enough, then it can permissibly be infringed. Rights violations are impermissible, but mere rights infringements are permissible.5 Infringing a right wrongs the right holder, but it is justifiable overall as long as it brings about a significantly lesser evil or respects a more stringent right.
I found this model of rights problematic in a number of ways. First, it is unnecessarily conceptually obscure to talk about permissibly or rightfully wronging another or, more precisely, to represent this as anything other than an extraordinary moral phenomenon.6 More importantly, there are ways in which the infringement model proves misleading or unhelpful on substantive issues:
1. It oversimplifies when compensation is due.
2. It opens up an inappropriate normative gulf between those who have forfeited claims and those who have not, making it too easy to justify doing harm to those who have and too hard to justify doing harm to those who have not.
3. It makes it unnecessarily difficult to make sense of how concerns with rights and welfare are to be weighed against each other.
4. It lacks the resources to explain a range of moral phenomena, from why it is that we should not treat people as a means without their consent to why claims not to be harmed as a side effect should be slightly, but only slightly, stronger than claims for aid, all else equal.7
4 The one person I have found whose work is at least marginally concerned with just war theory who is equally skeptical of the infringement model is Michael Moore. Tadros is, in a way, also skeptical of it; but he is skeptical of the importance of rights generally.
5 This way of using the term infringing is arguably a piece of jargon that has arisen only recently in the field of analytic normative philosophy. The more familiar meaning is synonymous with a rights violation. The first non-obsolete definition in The Compact Oxford English Dictionary, New Edition is as follows: “To commit a breach or infraction of (a law, obligation, right, etc.); to violate or break (an oath, pledge, treaty, etc.); to transgress, contravene.”
6 In Chapter 4, § 3, I argue that there may be occasions when it is, all things considered, morally appropriate to wrong another; but I think such occasions must be extraordinary.
7 I discuss all of these in Chapter 4, § 2.
Developing these problems with the infringement model and arguing that they can be avoided with a better model, one that provides us with a better understanding of the moral landscape, became the deep core of this book.
The alternative model that I argue for is one that I call the mechanics of claims. To be clear, the mechanics of claims is not offered as an analysis of what it means to have rights. It is offered as a model of rights that helps us understand what is substantively morally true.
According to the mechanics of claims, people have claims that protect their interests, but whether a particular claim corresponds to a right depends on how all the competing claims interact. To work out how they interact, the mechanics of claims distinguishes fundamentally different types of claims, such as claims of agents versus claims of patients (those affected by the choices of agents), diffent types of patient-claims reflecting the different causal roles a patient might play in an agent’s acting to achieve some end, and different types of agent-claims depending on whether they are claims to act or to refrain from acting. The mechanics of claims takes the strength of claims to depend in part on the kind of claim it is. It also provides a distinct structure for weighing different kinds of claims against each other and for explaining how the presence of some kinds of claims impacts the strength of other kinds of claims. Moreover, these distinctions and structural features are not simply designed to produce morally attractive results; they are grounded in three fundamental moral principles. The resulting picture explains in a deeply coherent way why we have the rights we have. This coherent explanatory account cannot be provided—at least I cannot see how it could be done—using the infringement model.
I am indebted to many people for helping me to write this book. First, it is only because I was fortunate enough to be able to present, in various fora, the various inadequate papers that I have written on these topics and to get good feedback that I was able to realize at each step along the way that more work had to be done. My gratitude along this first dimension starts with Seth Lazar, who invited me to comment on his book. I am next grateful to Jeff McMahan, Victor Tadros, and Helen Frowe for inviting me to present my first attempts at providing a positive account of when eliminative killing is justifiable—the patient-focused part of the book— at their respective home universities. After that, my gratitude goes out to David Rodin and the organizers of the Ethics, Law and Armed Conflict workshop for yet another chance to present and get feedback on the next generation of that part of the book. It was there, when I got an especially probing challenge from Adil Haque, that I realized that I had a book to
write. With regard to the agent-focused part of this book, I am grateful to Larry Alexander, Kim Ferzan, Stephen Galoob, and Yuan Yuan for inviting me to present that material. And finally, I am grateful to Johann Frick who agreed to co-teach a graduate seminar called Rights and Risks, jointly offered at Princeton and Rutgers Universities, where I was able to teach a draft of the book.
I would now like to thank those whose conversation and comments on papers or drafts of the book were especially helpful. At the top of the list is Kim Ferzan, whose encouragement and collaboration have been among the most important and fruitful I’ve ever had. Second is Ketan Ramakrishnan, who read the whole book in an early draft and gave me many useful comments. Third, I would like to offer special thanks to three people who participated in the Rights and Risks seminar and offered especially helpful comments: my co-teacher, Johann Frick, and two Rutgers students who audited the course: Benjamin Bronner and James Goodrich. Fourth, I would like to thank Alexander R. Cohen for his work editing the book before I turned it in to Oxford University press.
In addition, I would like to thank all of the following people who have given me helpful comments along the way: Larry Alexander, Richard Arneson, Yitzhak Benbaji, Joseph Bowen, Lars Christie, Russell Christopher, Michael Deigan, Tom Dougherty, Helen Frowe, Christopher Frugé, Stephen Galoob, Adil Haque, Lisa Hecht, Douglas Husak, Tyler John, Savannah Kinkaid, Gerald Lang, Seth Lazar, Adam Lerner, S. Matthew Liao, Todd May, Jeff McMahan, Michael Moore, Armando Jose Perez-Gea, Juan S. Piñeros Glasscock, Ajay Ravichandran, Massimo Renzo, Samuel C. Rickless, David Rodin, Richard Schoonhoven, Re’em Segev, Adam Slavny, Uwe Steinhoff, Victor Tadros, Danny Underwood, Leif Wenar, Peter Westen, and Yuan Yuan. My apologies to anyone whose name I have inadvertently left out.
Finally, I would like to thank my wife, Rachel Somerville, for occasionally expressing disbelief when I ran an idea or supposed insight past her; her sharp sense for BS has helped me avert errors on more than one occasion. Additionally, I would like to thank her and my son, Amitav Walen, for their encouragement as I wrote this book. I don’t think I’ve been too much of a grump or a derelict partner or parent. But writing a book is still a big, time-consuming endeavor; and it certainly helps to have family who appreciate the project and cheer you on.
The Mechanics of Claims and Permissible Killing in War
1 Introduction
Wars of conquest were never consistent with respect for rights: the conquered were killed, raped, maimed, and enslaved; their homes, their lives, and often their civilizations were destroyed. And now, in a world shaped by the horrors of two world wars, one punctuated by the dropping of atomic bombs, the idea of war as a path to glory has been largely rejected.1 It is now widely accepted that justice and respect for individual rights require strict limits on the right to wage war (jus ad bellum) and the things that may be done in war (jus in bello). The current law of armed conflict makes it clear: wars may be fought only in self- or other-defense.2
It is no surprise, then, that much contemporary just war theory would be modeled on the theory of self-defense. In this book, I offer a new account of how this modeling should work. But my focus will be more foundational than is normal. My reason is that I think the dominant account of rights used by people interested in the right of self-defense is doubly problematic: its internal tensions undermine the plausibility of the views people try to defend, and it is in some ways morally distorting. Thus, I will be primarily concerned with developing and then deploying a new account
1 Reference to the two world wars and the need “to save succeeding generations from the scourge of war” form the opening words of the Preamble to the United Nations Charter. The global surge in nationalist rhetoric, as I write these words, leads me to worry, however, that war is once again coming to be seen as a path to glory, horrors be damned.
2 The United Nations Charter limits the use of military force to two conditions: (1) actions the Security Council considers necessary to respond to “any threat to the peace, breach of the peace, or act of aggression” (Article 39) and (2) exercises of the “right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (Article 51).
of rights, one that I hope will put the discussion of the right to defend against threats on more solid footing.
This introductory chapter covers four themes. First, to explain why I think the current state of just war theory calls for a new account of rights, I trace a brief history of recent discussions of the right of self-defense.3 Second, I describe my position on when it is permissible to defend against threats. Third, I explain how this relates to current law and to other philosophical work on the topic. Finally, I sketch an outline of the rest of the book.
1. A Brief History of Recent Work on the Right of Self-Defense
I start with Judith Jarvis Thomson’s 1991 article “Self Defense,”4 which set the table for contemporary moral discussions of the right of selfdefense. Her aim was to understand why it seems permissible for an agent to engage in self-defense against not only culpable aggressors but also innocent threats—people who threaten to cause harm to another not by any voluntary acts they perform but simply by the involuntary motion of their bodies—even though it seems impermissible for an agent to kill a bystander to save herself. Her key move was to suggest that if a threat, even an innocent threat, would kill an innocent victim if he were not killed first, then he would “violate [her] right that he not kill [her].”5 This is not true of innocent bystanders. This contrast provided the basis for Thomson’s claim that threats lack, while bystanders retain, the right not to be killed.
In response, both Jeff McMahan and Michael Otsuka argued that Thomson was mistaken to think that an innocent threat can violate a victim’s rights. As McMahan put it:
A moral constraint can apply only to the action of a responsible agent. Neither a falling boulder nor a charging tiger can be subject to a moral constraint; thus neither can violate a right. Since . . . an Innocent Projectile is
3 I return to give a more positive treatment of the themes in this section in Chapter 6.
4 Thomson was not concerned with addressing just war theory. She “bypass[ed] the question how the fact of war affects questions about self-defense” on the ground that it was “too hard.” Thomson, 1991, p. 298.
5 Ibid., p. 300.
no more an agent than a falling boulder, it seems that [such a person] cannot violate rights and hence cannot forfeit them.6
This argument left McMahan and Otsuka taking the position that selfdefense against a fairly broad range of innocent agents is normally impermissible. The only condition under which it would be permissible is that the harm to them would be substantially outweighed by the harm they would impose on others if not stopped, in which case a lesser-evil justification could be invoked. The range of innocent agents who retain their right not to be killed includes not only an innocent projectile but a person suffering an epileptic seizure whose motions could kill another, a person who has started to attack another because she drank coffee laced with a behavior-altering drug, and a person who is about to press a button on her phone that, for reasons she could not have anticipated, will cause a bomb to explode that will kill an innocent victim.7 On their view, a potential innocent victim (I leave the word potential implicit from this point forward) is no more free to kill any of these innocent threats in self-defense than she would be to kill an innocent bystander in self-preservation.
McMahan and Otsuka also proposed a strategy to limit the implication of their view so that it did not imply that only culpable threats could forfeit their right not to be killed.8 They focused on the responsible choice to impose a risk on another, giving rise to a situation in which someone must die. Here, in essence, is McMahan’s example:
Conscientious Driver: Connie, who always keeps her car well maintained and always drives carefully and alertly, decides to drive to the cinema. On the way, a freak event that she could not have anticipated occurs that causes her car to veer out of control in the direction of Peter, a pedestrian. 9
6 McMahan, 1994, p. 276. Otsuka offered a nearly identical argument, identifying a falling human with “a chunk of granite.” Otsuka, 1994, p. 80. Otsuka also convincingly argued that the view that an innocent threat causes an innocent victim’s rights to be violated—a view taken, for example, by Frances Kamm—likewise makes no sense (p. 80n17).
7 I take the epileptic case and the laced-coffee case from Rodin, 2002, p. 80; the phone-button case comes from McMahan, 2009a, p. 165. To be clear, in all cases we must assume that the person had no warning that she might have a seizure, drink drugged coffee, or become a projectile. If she had a warning and ignored it, then she knowingly or negligently imposed a risk on others and her case moves into the other category, in which she may have forfeited her right not to be killed.
8 McMahan came to his solution later than Otsuka.
9 This case is almost identical to the one described by McMahan, 2009a, p. 165.
McMahan argued that Connie has forfeited her right not to be killed in defense of Peter. As he wrote, she knows “that her action carries a small risk of causing great though unintended harm.”10 He continued: “because she knowingly imposed this risk for the sake of her own interests[,] she is morally liable to defensive action to prevent her from killing an innocent bystander.”11
Otsuka similarly offered a case in which self-defense was, in his view, justifiable because the person against whom it is used has non-culpably chosen to put another’s life at risk.
Hologram: Polly projects a holographic gun onto Howard’s hand as he extends his hand to greet Diane. Diane, taking the gun to be real, reaches for her own gun to shoot Howard in self-defense. Howard, seeing the holographic gun too, realizes that Diane will shoot him in self-defense if he does not shoot her first with the real gun he is carrying in a holster. If he acts quickly he can shoot her and save himself—i.e., they will not both get shot and die.12
Diane’s mistake is reasonable, and she acts non-culpably, given what she reasonably believes. But given the facts, she threatens to kill Howard without having any right to do so. Otsuka argued that Howard can justifiably kill Diane because Diane “takes a gamble” by choosing to use violence against him.13 In essence, he says that her choice to use force makes her liable to be killed if it turns out, as it does in this case, that it is not in fact a justified choice.
The main problem with these responsible-choice accounts arises from the fact that McMahan and Otsuka accept that there is a strong presumption against intentional killing such that to justify it, as McMahan put it, “there must be some important moral difference between the Threat and [the Victim].”14 The problem is that the responsible choices the threats make in Conscientious Driver and Hologram do not seem to provide an “important moral difference” between the threats and their victims. There’s a Coasian symmetry in the situations that McMahan and Otsuka both ignore that makes it, in fact, unclear who took the responsible choice to create it.
10 Ibid., p. 166.
11 Ibid.
12 This case traces back to Otsuka, 1994, p. 91. The formulation I use is modeled closely on one from Frowe, 2014, p. 81.
13 Otsuka, 1994, p. 91. Otsuka, 2016, defends this position again.
14 McMahan, 2009a, p. 169.
Seth Lazar seems to be the first person to make this point, and, following Lazar, I focus first on McMahan’s case and then turn to Otsuka’s. Lazar’s central insight is that the “Pedestrian’s voluntary choices also contribute to the forced choice between their lives coming about.”15 Indeed, it is clear that if Peter took unreasonable risks, say walking into traffic, then he would have forfeited his right to defend himself against a conscientious driver bearing down on him. We can assume that Peter took normal precautions not to get hit, but then we are also assuming that Connie took normal precautions not to drive out of control. Why is Connie liable to be killed for the forced choice and not Peter? It might be tempting to recall McMahan’s point that Connie “knowingly imposed this risk for the sake of her own interests.” But we can assume that Peter knowingly assumed the risk of being near traffic for his own interests. Moreover, it is not merely the case that he put himself at risk. If he has the means to defend himself, then he puts drivers at risk too. Given these similarities, there is no “important moral difference” between Connie and Peter. There is a difference: Connie is a threat to Peter. But this difference, by itself, does not seem to be the kind of “important moral difference” that would explain why Connie has forfeited her right not to be killed.
One might think that Hologram works better for the assumption of risk argument. After all, Diane chooses not only to put Howard at risk but to try to kill him. But risk is still the key notion in the argument. As Otsuka put it, Diane “takes a gamble . . . when she engages in such avoidable risky activity” as pulling her gun on Howard.16 But, again, she could not threaten him if he were not there. Moreover, Howard assumes that Diane is attacking him just as she assumes that he is attacking her, and they both pull guns on each other on the basis of that assumption. The only difference between them is that Polly projected the hologram into Howard’s hand and, thus, that Diane is the one who made a mistake about the existence of a threat (at least before he pulls his real gun). But this is just a matter of who had the bad luck to be mistaken. It does not seem to be “an important moral difference.” As Lazar puts it, if we assume that the right to life can be forfeited only because of “something distinctive about us as moral subjects,” then presumably it must be “something beyond mere bad luck.”17
15 Lazar, 2009, p. 717.
16 Otsuka, 1994, p. 91.
17 Lazar, 2009, p. 701. See also McMahan, 2009a, p. 177: whether someone is liable “cannot be merely a matter of luck” (original emphasis).
